Ford’s conflict of interest: Honest error or ‘wilful blindness’?

Lawyers present both arguments as hearing wraps up a full day early.

Mayor Rob Ford leaves court during the lunch break on Wednesday, when he spent most of the day on the stand. Thursday, he was in court in the morning but didn't stay for his lawyer's summary of his three-point defence.

It took Alan Lenczner less than an hour and a half to lay out Rob Ford’s defence in the conflict-of-interest hearing that could cost the mayor his job.

Lenczner’s case hinged on three arguments.

One, that city council had no authority to make Ford repay $3,150 in football charity donations in the first place.

Two, that even if council did — which Lenczner maintains they didn’t — that penalty was being imposed under Toronto’s code of conduct, which is separate from the Municipal Conflict of Interest Act.

Three, the mayor may have made the wrong call in not declaring a conflict, but it was an honest mistake. This inadvertent “error in judgment” defence is what Mississauga Mayor Hazel McCallion successfully argued at her 1982 conflict of interest case.

The high-stakes hearing wrapped up minutes before 5 p.m. Thursday, a full day ahead of schedule. It is now up to Justice Charles Hackland to decide if Ford, who has 12 years of experience in office and who has declared a conflict at least nine times in the past, should have known better.

Hackland promised a decision in “timely fashion.” Legal experts predict the verdict could arrive as early as four weeks, and as long as four months.

At issue is whether Ford broke the rules at a February council meeting. Two years ago, council ordered Ford to repay donations made to his private football foundation, which the city’s integrity commissioner found inappropriate because Ford had used city resources to solicit the funds. As of the beginning of this year, Ford had still not repaid the money. In February, council debated whether to overturn the penalty. Ford spoke to and then voted on the item, which passed.

Ford, who testified Wednesday, maintains that he did not believe he was in conflict because the decision did not financially benefit himself and the city.

The mayor was again in court Thursday until the lunch break, but he did not stay to hear his defence.

The backbone of Lenczner’s case is that Ford couldn’t have been in conflict on an issue that should never have come up in the first place. Under the City of Toronto Act, there are only two penalties that council can impose for breaches of the city’s code of conduct: a reprimand and suspension of pay for up to 90 days.

“Not one of those penalties was assessed against Mr. Ford. As a result, what the city did was a nullity. It acted outside the scope of its authority” by ordering the $3,150 repayment, Lenczner argued.

Before the hearing began this week, legal experts predicted that Ford would have a tough time making the ignorance argument, given that he’s recused himself from sensitive matters at least nine times before. But Lenczner flipped that around.

He argued that Ford’s record of declaring conflict of interests in the past is proof that he would have done so at the meeting in question had he realized there was an issue — in fact, Ford declared a conflict on an unrelated item at that same council meeting.

“He may (have been) wrong (to vote on the donation issue). And the case may allow for that. Because that’s what an error of judgment is. You’re wrong. But that’s an excuse under the Act,” Lenczner said.

Earlier Thursday, lawyer Clayton Ruby devoted much of his time to dispelling this line of defence.

Ruby argued Ford’s claim that he is unfamiliar with details of the Act “simply not believable.”

Ruby pointed to testimony in which Ford declared he had never read the Act, never received a councillor orientation handbook and never gone to training sessions in his 12 years at city hall.

Ruby called his “wilful blindness . . . inexcusable.”

“As mayor he ought to have had a clear understanding of his obligations. This entire pattern of conduct shows that he chose to remain ignorant, and substituted his own view for that of the law,” said Ruby.

At one point, Ruby appeared to accuse Ford of lying under oath. He asserted that on Wednesday, the mayor tried to “dance back” from comments after allegedly sensing they might get him “in trouble.” Ford told court he has handed out official business cards to people and then told them about his charity, but the mayor noted he habitually hands out cards to everyone he meets.

A fourth argument made by the defence was that the amount of money, especially to a man as well off as Ford, was too “insignificant” to constitute a conflict. Hackland appeared to rule this out immediately.

If Hackland finds Ford guilty, he may be removed from office and could be banned from running in the next election.

The mayor did not take questions. He left court silent but smiling, as his staff guided him to a waiting SUV at the 1 p.m. break.

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